they believed from the evidence that on November 3, 1913, in the presence and hearing of some other person, defendant, William Deitchman, falsely and maliciously spoke of and concerning plaintiff, the language above set forth, "thereby meaning that the plaintiff had committed the crime of robbery," the jury should find for plaintiff. Defendant objected to this instruction, and asked the court to give an instruction defining the crime of "robbery" as used in the instructions given. This request the court denied, and of this ruling appellant complains. The case of Beams v. Beams, supra, is directly in point, and conclusive upon the contention here presented. In that case the word "stole" was complained of. After noting that the word has an actionable and a nonactionable sense, and that the plaintiff could not recover if the word was used colloquially, but could recover if it was used in its actionable sense, that is, "meaning thereby to charge the plaintiff with having committed the crime of larceny," the court held that the trial court should have told the jury what constitutes larceny, and should have instructed them that, unless the words spoken by defendant were intended to charge the plaintiff with the crime of larceny, and would be naturally so understood by the persons who heard them, the verdict should be for the defendant. In the instant case, as the plaintiff may recover only in the event the word "rob" was used in its actionable sense (no special damages being shown), the court, in order that the jury might intelligently determine whether the language complained of was used and was understood by its hearers in its actionable sense, should have told the jury what is required to constitute the crime of robbery, and that, unless they believed from the evidence that the defendant, in using the language complained of, intended to charge plaintiff with the crime of robbery, as in the instructions defined, or that the language used was reasonably calculated to cause the persons who heard it to so understand it, they should find for the defendant. For this error in the instructions defendant is entitled to a new trial. [4] 2. Appellant also complains that the trial court erred in limiting the number of witnesses permitted to be introduced by each side; but, as the bill of exceptions does not show that any such ruling was made by the court, the complaint cannot be considered upon appeal. [5] 3. It is further contended by appellant that the trial court erred in refusing to permit him to show that the language complained of was uttered in the course of a hotly contested campaign in which appellant and appellee were opposing candidates for the office of trustee of the village of Highland Park and in response to attacks which had it was competent to show that the language was uttered in the course of such a speech, that the parties were opposing candidates, and also (if defendant so desired) to prove statements made by plaintiff concerning defendant at that meeting, although statements made by him at other times or on other occasions were not competent. [6] 4. Another ground urged is that the trial court erred in sustaining the objection to a question asked by him on cross-examination of one of appellee's witnesses as follows: "Q. You were a follower of Mr. Bowles in that campaign?" The ruling was right. It was competent, of course, to show that the state of feeling between the witness and appellee was friendly, but not by way of questions like the one propounded. [7] 5. Finally, appellant complains of the ruling of the trial court in permitting appellee to show that his reputation for honesty was good, no attack upon his character, either by a plea of justification or by evidence, having been made by appellant upon the trial. This has been said to be "one of the most controverted questions in the whole law." 1 Wigmore on Evidence, §§ 70-76. This writer also says: "The better rule seems to be that his reputation is assumed to be good, and that he has therefore no need to sustain it until it has been attacked." is difficult to determine which is the preChamberlayne on Evidence, § 3284, says it vailing doctrine in regard to the admissibility of evidence of the plaintiff's good character, especially where there is no plea of justification. The same uncertainty in respect to the course of decision and weight of au1 Greenleaf on Evidence, § 55; 8 Ency. of thority is expressed in the following works: Evidence, 274; Newell on Slander and Libel, § 933; 25 Cyc. 507. We have been able to find but one reported case in this state where the question seems to have been directly presented. In Williams v. Greenwade, 3 Dana, 432, an action of slander, the defendant tendered the general issue, a common-law plea under which the defendant was not permitted to prove the truth of the defamatory words. The court said: "And, as injury to character is the gravamen of slander, goodness of character may be proved in aggravation as badness may be proved in mitigation of damages in an action of slander." Under the authority of this case, we hold that plaintiff may introduce in chief evidence of good character, although there be no plea of justification or any evidence offered by defendant attacking plaintiff's character; but, the same being competent only for the purpose of increasing the damages, the jury should be admonished that such evidence may be considered only as bearing upon that question. For the errors indicated, the judgment is reversed for further proceedings consistent BEALL v. LOUISVILLE HOME TELE PHONE CO. 5. TELEGRAPHS AND TELEPHONES 20-INJURIES FROM MAINTENANCE-PLEADING AND PROOF. Under such facts, there is no variance beLOUISVILLE HOME TELEPHONE CO. v. tween the evidence and the allegation that defendant was negligent "in placing and thereafter maintaining such stob in the forks of the tree." BEALL. (Court of Appeals of Kentucky. Oct. 21, 1915.) 1. APPEAL AND ERROR 982 EXCESSIVE DAMAGES-VERDICT SET ASIDE-DISCRETION. Where the action of the trial court in setting aside a verdict as excessive is questioned on appeal, the decision will depend on whether there has been an abuse of discretion, and not upon the opinion of the appellate court as to whether the damages are excessive. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3877-3879; Dec. Dig. 982.] 2. NEW TRIAL 76-GROUNDS-EXCESSIVE VERDICT-ABUSE OF DISCRETION. Where, in an action against a telephone company for personal injuries, there was no evidence that the injuries though severe and painful, were permanent, there was no abuse of discretion in setting aside a verdict for $12,000 as excessive. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. 76.] 3. DAMAGES 132 - PERSONAL INJURY EXCESSIVE DAMAGES. Plaintiff was injured while riding on a railroad train by being struck by a large billet of wood attached to the end of a loose telephone wire, being knocked out of his seat on to his back in the aisle and cut in numerous places by flying glass. His left leg was so injured as to aggravate a varicose vein, requiring the subsequent removal of the entire vein, and he was injured in the spine so as to cause pain intermittently for months after the accident, so that upon every effort to resume work he would in a few days break down. At the time of injury he was earning $7,300 a year. Held, that a verdict for $7,250 was not excessive. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. 132.] 4. TELEGRAPHS AND TELEPHONES 20-INJURIES FROM MAINTENANCE-RES IPSA Lo QUITUR. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. 20.1 20 6. TELEGRAPHS AND TELEPHONES NEGLIGENT CONSTRUCTION-INJURIES-EXCUSES-ORDERS OF THIRD PERSON. The court did not err in rejecting evidence offered by defendant that the owner of the land and tree limited the means of fastening the biltion could not excuse defendant in risking an let to the tree, since obedience to such limitainsecure fastening. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. 20.] Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Division. Action by John M. Beall against the Louisville Home Telephone Company. Judgment for the plaintiff, and defendant appeals, and plaintiff files a cross-appeal. both appeals. Affirmed on Sheild, Campbell & McAtee and Bruce & Bullitt, all of Louisville, for appellant. W. Pratt Dale and Edwards, Ogden & Peak, all of Louisville, for appellee. NUNN, J. On May 9, 1913, appellee Beall He was the victim of a peculiar accident. was a passenger on a Louisville & Nashville railroad train, leaving Louisville at 5 p. m. and bound for Cincinnati. He was seated in a Pullman chair car, the rear car, and as the train was passing the reservoir of the Louisville Water Company, a ventilator on top of the Pullman came in contact with a telephone guy wire, which had been strung across the track by employés of appellant telephone company about three hours before. The wire was tied to a round wooden stob about 4 feet long and 8 inches in diameterthe end of a telephone pole. The impact of the train pulled the stob loose, and it crashed through the car window where Beall was sitting. He was knocked out of the seat and fell on his back in the aisle. Four of the car windows were broken, and the shattered glass inflicted many painful and bloody wounds on his head and face. These injuries, however, were of a minor character. The. serious and permanent injuries alleged were to his left leg and spine, due to the lick from the stob and his fall in the aisle. First aid was given by a physician who happened to be on the train. In this way the exterior wounds were washed and bandaged so that he continued the journey to Cincinnati, his destination. During the next few days [Ed. Note.-For other cases, see Telegraphs his family physician in Cincinnati picked out and Telephones, Cent. Dig. § 13; Dec. Dig. many pieces of glass and redressed the 20.] While plaintiff was a passenger on a train and seated in a Pullman car at the rear of the train, a ventilator on top of the car came in contact with a telephone guy wire across the track, which had been strung there three hours before by workmen of defendant telephone company the wire extending from a pole across the track to a billet of wood 4 feet long and 8 inches in diameter, which had been braced in a tree and the wire thereto attached, the wire being loose on the billet and the billet not being fastened in the tree, but merely jammed among the limbs. The wire did not extend from the billet at right angles, but had a sideways and upward pull, and if tight would have cleared the top of the car by 12 feet. The wire had been similarly stretched across the track for a number of years without causing trouble; the change made being only in the fastening of the wire. Held, that the catching of the wire on the ventilator raised a prima facie presumption of negligence under the doctrine of res ipsa loquitur, and that the burden was upon the defendant to prove that the accident happened without negligence on its part. wounds. At the time of the accident Beall was 43 | for $12,000, but whether, in view of the eviyears of age and general manager for the dence at the first trial, we can say that the Pugh Printing Company of Cincinnati, under court erred in setting aside the $12,000 vera contract extending over several years, at a dict then rendered. As said by the court on salary of $7,300 per annum. His duties kept similar questions in the case of Brown v. L. him traveling most of the time on business of & N. R. R. Co., 144 Ky. 546, 139 S. W. 782: the company. For 20 years there was a "The question now to be considered is not varicose vein in his left leg midway between confined to what our opinion may be as to the excessiveness of the verdict set aside, but dethe knee and ankle, but prior to the accident pends rather whether the setting of it aside was it had never caused him any trouble or incon- an abuse of discretion on the part of the trial venience. There were many bruises on both judge. Under the settled practice the granting legs, but the most serious was on the left of new trials is a matter largely within the discretion of the trial court, and unless it appears leg. This so aggravated and inflamed the that this discretion has been abused, or, to varicose condition that physicians advised a state it differently, not properly exercised, we surgical operation to remove the vein. In do not feel disposed to interfere with it." Pace three days after the accident his back be- V. Paducah Railway & Lighting Co., 89 S. W. 105, 28 Ky. Law Rep. 278; Walls v. Walls, 99 gan to pain him, and an abnormal nervous S. W. 969, 30 Ky. Law Rep. 949; Cochran v. condition appeared; these conditions have Cochran, 93 S. W. 18, 29 Ky. Law Rep. 333; continued intermittently and with increased Floyd v. Paducah Railway & Light Co., 73 S. severity. He grew nervous and irritable, and W. 1122, 24 Ky. Law Rep. 2364. to obtain rest frequent administration of narcotics was necessary. During the summer he was under the care of physicians, not only in Cincinnati, but at Chicago and Battle Creek and finally at St. Louis. Several times during that period he thought himself sufficiently restored to take up his work, but in a few days he would break down. After the accident each of his physicians advised a surgical operation for the varicose vein, and in October, 1913, after ulcers had formed, surgeons in St. Louis removed the vein from ankle to hip. The operation was a success, and there is now no claim for permanent injury to the leg. The permanent injury is to his nervous system, resulting, as it is claimed, from concussion of the brain and spine at the time of the accident. Beall sued the Telephone and Railroad Companies to recover $30,000 damages for pain and suffering and permanent injury, and $2,303 for doctors, hospital, and traveling expenses. There have been two trials. At each trial there was a directed verdict for the railroad, and on this appeal there is no criticism of those rulings of the court. On the first trial the jury returned a 'verdict for $12,000 against the telephone company. On its motion this was set aside as excessive, because, in the opinion of the court, the proof did not then go to the extent of showing that the injuries were permanent, although at that time it appeared that he had not recovered. At the next trial there was a verdict and judgment for Beall for $7,250. The jury assessed $5,000 of it as compensation, and $2,250 for doctor's bills and expense. It is from this judgment that the telephone company appeals, and claims, among other things, that this last verdict is excessive, although the amount awarded for medical expense is not seriously criticized. Beall brings a cross-appeal and asks for a reinstatement of the $12,000 verdict and judgment in his favor. [1] We will consider first the cross-appeal. The question is not whether the evidence on the last trial is sufficient to uphold a verdict There was a conflict [2, 3] We have examined the evidence given on both trials, and, on the question of damages, have reached the conclusion that the court did not err in setting aside the first verdict, nor in refusing to set aside the second. The evidence as to permanent injury was not as strong on the first trial as it was on the second. both times in the medical testimony as to how long Beall would probably be affected by the injury to his spine, but at the first trial even those who thought it temporary were of the opinion that he would have to go to a hospital and submit himself to medical treatment for many months in order to be restored. Others were of opinion that he would never recover. The day before the last trial, and on motion of the telephone company, the court appointed Dr. Boggess, an eminent physician, to examine Beall. Each of the parties hereto had the privilege, and exercised it, of selecting a physician to be present at the examination made by Dr. Boggess. The testimony of Dr. Boggess shows his thorough examination and the various tests he made. They are technical, and it is unnecessary to mention them in detail. It is sufficient to state his conclusions: "I should say that many of these symptoms and many of these conditions are permanent, and will remain permanent. I believe it is possible that the man will improve some in health from his present condition, but he will always have the trouble that he has now.' Without this evidence on the first trial, we cannot say there was an abuse of discretion in setting aside the first verdict. Certainly there is no good reason shown why we should disturb the last on the ground of excessiveness. [4] But the telephone company asks a reversal on other grounds. It complains that there was a variance between the pleadings and proof; that there was not sufficient evidence of negligence to support the verdict; and that it was error to apply the doctrine of res ipsa loquitur. To weigh these questions it will be necessary to give more of the facts in evidence. It appears that a telephone pole on the east side of the railroad track had, for a long while, been supported by this guy wire fastened to a tree west of the track and growing on the reservoir property. This tree had died on account of the wire wrapped around it. Those in charge of the reservoir property desired to remove the tree, and notified the telephone company to detach the wire. Permission was granted to use another tree near by. It may as well be stated here that the telephone company offered to prove to the jury that in granting permission to use another tree the "water company stated that they did not want wires tied around any trees on their property so as to injure or kill them, but that if the wire could be otherwise placed in the tree they were welcome to use it." business, and experienced employés of other companies, who have similar duties to perform, all testified that it was customary to place guy wires and stobs in trees as this was placed, and that it was not necessary to tie or otherwise fasten the stob to the tree, and that the tree selected was in every way suitable for the purpose. They agree that the horizontal limb just over the wire made the stob secure; that is, protected it against the up pull. across the track attached to its old fasten- on other cars. From a diagram in the case it appears that a straight line drawn from a point 49 feet high on the telephone pole to the point in the tree where the stob was laid would clear the railroad track 26 feet and 8 inches. This is at least 12 feet higher than the standard car. Notwithstanding the inability of appellant's witnesses to account for the The court rejected all testimony as to stob coming loose and the wire swinging conditions imposed for use of the tree. Ap-down, and although for years the wire was pellant urges this also as a ground for reversal, and it will be referred to again. Anyhow, on the day of the accident and about 2 o'clock p. m. the change was made, and the wire was fastened to the new tree in the following manner: About 12 or 14 feet from the ground the tree forked into three limbs. This 4-foot stob, already referred to, was laid horizontally in the forks in such a way that it had a firm bearing against the two front prongs, and was supported by the prong which branched out behind it. Two laps of the guy wire were taken around this stob midway between the front forks, and then by means of block and tackle it was drawn tight over the railroad track and the end of the wire twisted or fastened around the tightened wire, the connection being 3 to 5 feet out from the stob. Each end of the stob projected about 4 inches beyond the tree forks, so that there was a space of 2 feet between the forks where the wire was wrapped around the stob. No hitches were cut or brads driven into the stob to hold the wire in place and thus prevent the wire from slipping toward either end and making an unequal strain. Appellants' witnesses say that with the guy wire stretched tight like they left it, such a thing as this could not occur. Neither was anything done to make the stob fast to the tree, except to tap it The wire did not lightly with a hand axe. run at right angle from the stob, and since the other end of the wire was fastened nearly to the top of the telephone pole, at least 49 feet from the ground, there was a constant up and side pull on the stob. But witnesses for the telephone company explain that there was no possibility of the stob being pulled upward, or at all out of place, because the wire was stretched one inch under a limb leading from one of these front forks, and at right angle to the wire. Therefore they argue there was no chance for an upward movement. Numerous witnesses for The accident occurred in May. The wind was blowing, although not out of the ordinary for the season. As the tree was swayed back and forth by the wind so that the wire was alternately made tight and loose, there was a natural tendency for the stob to shift laterally in one direction while the wire, by reason of its loose wrap around the stob, shifted its position on the stob in the other direction, and it is equally natural that in the course of three hours one end of the stob would be pulled entirely clear of the front fork furthest removed from the telephone pole. But appellant argues that presumptions or inferences of this kind are no more natural or plausible than a presumption that the water company objected to the manner in which the stob was placed in the tree, and for that reason removed it, or else that it was the work of a miscreant. cannot agree with counsel. A presumption of interference by the water company or by miscreants would be based upon improbabilities, and without a scintilla of fact for support. In this we The wire which came down and was the direct cause of the injury was the same with which appellant's servants had just been working, and which they had just left as a complete and safe job. If their work had been done with proper care and the wire fastened securely, the accident that happened is one that in the ordinary course of fords reasonable evidence that the accident "Notwithstanding the uncontradicted evidence of Elswick [the inspector] the jury might be of physical conditions, that, as the roof fell soon the opinion, based upon the evidence of the after his inspection, he did not make a careful inspection, or, in other words, that the master did not exercise ordinary care to put and keep was a question for the jury, not for the court, the entry in reasonably safe condition. This so the court erred in taking the case from the jury." 435. happened from want of proper care. The burden is then upon the defendant to explain the cause in such a way as to demonstrate that it exercised proper care to make it safe. To reach this conclusion is to apply the maxim res ipsa loquitur. But appellant contends that the maxim should not be applied in this case, and argues that to prove merely that its servants had fastened the wire In the following cases these principles are three hours before it fell is not enough to discussed and the maxim applied. Shinn show that appellant had control of or was Glove Co. v. Sanders, 147 Ky. 349, 144 S. W. responsible for the condition of the guy wire 11; Paducah Traction Co. v. Baker, 130 Ky. and stob at the time of the accident, and 360, 113 S. W. 449, 18 L. R. A. (N. S.) 1185; therefore insists that the cause of the acci- L. & N. R. R. Co. v. Clark, 106 S. W. 1184; dent is simply a matter of conjecture. As Louisville Lighting Co. v. Owens, 105 S. W. has already been pointed out, the appellant offered no explanation, and their witnesses frankly confessed that they could not understand how the wire and stob got loose. When the uncontradicted evidence shows that the wire, with its former fastenings, had until three hours before the accident been suspended over the track for years without harm or hurt to any one, and that appellant's employés had just changed the fastening, and then the accident happened, and considering the uncontradicted evidence as to the insecure manner in which the stob was placed in the tree and the wire fastened thereto, we are of opinion that the cause was not a matter of conjecture. The stob was worked loose from that tree as certainly and as naturally as the wind blows. In Hogan v. Manhattan Railroad, 149 N. Y. 23, 43 N. E. 403, the court said: "It is a well-settled rule of law that if a person erects a building, bridge, or other structure upon a city street or an ordinary highway, he is under a legal obligation to take reasonable care that nothing shall fall into the street and injure persons lawfully there. This being so it is further assumed that buildings, bridges, and other structures properly constructed do not ordinarily fall upon the wayfarer, so also, if anything falls from them upon a person lawfully passing along the street or highway, the accident is prima facie evidence of negligence, or, in other words, the presumption of the negligence arises." In Huddleston's Adm'r v. Straight Creek Coal Co., 138 Ky. 506, 128 S. W. 589, Huddleston was killed early one morning at a place in the mine which had been inspected the evening before and pronounced safe. The court said: [5] But it is contended that the proof did not show the specific acts of negligence alleged. This is the variance complained of. Two grounds of negligence are alleged, in the alternative. It is said that Beall was injured either "through the gross negligence and carelessness of appellant in extending said wire across the track at such a height that the car in which plaintiff was riding could not safely pass under said wire without colliding with same," or "by the gross negligence and carelessness of appellant in so placing and thereafter continuing said stob in the forks of said tree in such manner that the wire became a dangerous and unsafe obstruction across said track, so that the car could not safely pass under the same without colliding with it, and that one or both of said facts was true." The maxim res ipsa loquitur is a rule of evidence, not of pleading. Presumptions were not pleaded, but we think the evidence in the case does support the averment that there was negligence, "in placing and thereafter maintaining said stob in the forks of said tree." Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319, 50 L. R. A. (N. S.) 1100. [6] The court did not err in rejecting the proffered testimony of the water company's officials limiting the means of tying or fasgiven by the water company was not suffitening the stob to the tree. If the permission cient to allow the stob to be securely and safely fastened to the tree, that did not excuse appellant in risking the wire with a partial or insecure fastening. Beall's employer continued him upon the pay roll for full wages, but appellant cannot take credit for this. The fact could in no way decrease the amount Beall was entitled to recover. Perceiving no prejudicial error, we are of opinion that the judgment of the lower court should be affirmed. |